Bond v. United States: A Federalism Whisper Rather than Scream

Bond v. United States could have been the biggest federalism rulings from the Supreme Court this term.  But it wasn’t.  Nevertheless federalism underlies the ruling in this narrow case.    

The significant question raised in Bond v. United States is whether the federal government can adopt a statute implementing a treaty that it would not otherwise have the authority to adopt. The Supreme Court did not answer that question.  Instead, it merely held that the Petitioner’s conduct in this case wasn’t covered by the statute.   

Carol Anne Bond, upon discovering her closest friend was pregnant with her husband’s child, placed chemicals on her car door, mailbox, and door knob in the hopes her friend would develop an uncomfortable rash.  Bond was charged with possessing and using a chemical weapon in violation of the Chemical Weapons Convention Implementation Act, which implements a chemical weapons treaty the United States ratified.

 The Supreme Court held that Bond’s conduct did not violate the Chemical Weapons Convention Implementation Act.  Bond asked the Court to limit or overrule the 1920 case of Missouri v. Holland, which held that if a treaty is valid then a statute implementing it is valid, to the extent the case authorizes “usurpation of traditional state authority.”  A majority of the Court declined to do so, ruling only on the much narrower issue described above.

The unanimous opinion relied on “federalism embodied in the Constitution” to resolve the ambiguity in the definition of “chemical weapon” in the Chemical Weapons Convention Implementation Act.  Concluding the use of chemicals in this case is a “chemical weapon” would “alter sensitive federal-state relationships,” “convert an astonishing amount of ‘traditionally local criminal conduct’” into “a matter for federal enforcement,” and “involve a substantial extension of federal police resources.”  “In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”

            Justices Scalia, Thomas, and Alito concluded that the Chemical Weapons Convention Implementation Act covered Bond’s conduct and opined that the statute is an unconstitutional exercise of federal power.  The views of the six other Justices on this issue remain unknown.